Articles Tagged with New Jersey LGBT Attorneys

Published on:

pencil-1385100__340-300x200Here at the New Jersey Lawyers Blog we usually stick to New Jersey law (the name is probably a giveaway).  However, a federal decision this week in the United States Court of Appeals for the Seventh Circuit (with jurisdiction over appeals from the federal courts in Illinois, Indiana and Wisconsin) deserves mention.  In the case of Hively vs. Ivy Tech Community College of Indiana, the Seventh Circuit held that firing an employee because of her sexual orientation is illegal sex discrimination in violation of Title VII of the Civil Rights Act of 1964.  It became the first Federal appeals court to so hold.  It broke with many of its sister circuits.  The United States Supreme Court has never decided the issue.

Kimberly Hively was a part-time adjunct professor at Ivy Tech.  She applied for at least six full time teaching positions but was rejected each time.  Finally, her part-time contract was not renewed.  Hively was only lesbian.  She filed a complaint with the U.S. Equal Employment Opportunity Commission (the “EEOC”) alleging sex discrimination in violation of Title VII because she claimed that had been terminated because of her orientation.  The EEOC issued a right to sue letter, and she filed suit in the United States District Court for the Northern District of Indiana pro se (on her own without a lawyer).  The District Court dismissed her suit, ruling that discrimination because of sexual orientation was not protected by Title VII.  She appealed to the Seventh Circuit.  Initially a three judge panel of the Seventh Circuit agreed with the District Court and ruled against her.  However, the entire court then voted to hear her appeal en banc (by the whole court), and reversed its prior decision.

The Seventh Circuit had several reasons for its holding.  First, in 1989 the Supreme Court held that the practice of gender stereotyping was illegal sex discrimination.  Then in 1998 it held that it made no difference whether or not the harasser was of the same or a different gender as the victim provided that the harassment was because of the victim’s gender.  It then reasoned that if the stereotype is that a woman should marry a man Hively would not have been fired if she had married a person of the other sex, then she was discriminated against because of her gender because she married a woman, a person of the same sex.